Remedies Against Public Authorities for Breach of EU Law and the ECHR

Introduction

[1] It is my great pleasure to address the inaugural joint seminar of the Irish Centre for European Law (“ICEL”) and the Association of European Administrative Judges (“AEAJ”).

[2] ICEL was founded in 1988 and is based at Trinity College, Dublin. Its central aim and raison d’etre are to promote knowledge, understanding and the good practice of EU Law and European Human Rights Law. While it is a scholarly body, it has a wide ranging membership. Its status and reputation are excellent. It engages in research, education, publications, conferences and seminars, amongst other activities. Membership embraces, inter alios, solicitors, barristers, law academics, judges and others. There are also corporate members such as government departments, non governmental organisations, universities, public authorities and private sector businesses.

[3] I take this opportunity to pay tribute to the chairman of ICEL, The Honourable Mrs Justice Fidelma Macken, a recently retired judge of the Irish Supreme Court and a former judge of the CJEU and the current director of the organisation, Nathy Dunleavy, a barrister practising in this jurisdiction. Nathy’s seemingly incombustible energy and commitment, coupled with his consummate skills and talents, have been conspicuous during recent months in the arrangements and preparations for this event. We are all particularly indebted to him.

[4] The ties and interests which are common to ICEL and AEAJ are obvious and require no elaboration. One sincerely trusts that the future will bring must productive interaction between these two organisations, together with the flourishing of new friendships. AEAJ has no seat. Rather, it has a nomadic existence. While it navigates from one EU Member State to another, it is supported by a highly committed board and piloted by two outstanding office bearers, Heinrich Zens, its president, and Edith Zeller, its Secretary. Both are indefatigable ambassadors of the organisation. We are all of us in their debt.

Omissions in the scheme of human rights protection :

[5] The theme chosen for this seminar by my colleague, Judge Heermanm (of Germany) is a stimulating and intriguing one. The discrete aspect of omissions by public authorities in the sphere of human rights protection demands some careful reflection and analysis. At first blush, it appears somewhat elusive. Most discussions and reflections on human rights violations by state authorities tend to focus on positive acts and deliberate conduct. Moreover, these are usually the headline grabbing cases.

[6] Given the strict dualist system which operates in the United Kingdom, the European Convention on Human Rights and Fundamental Freedoms (“the ECHR”) did not form part of domestic law. While the UK was one of its first signatories (ratification was effected by the Conservative government on 3rd November 1952), it clearly mistrusted the Convention and its machinery, subscribing to neither the right of individual petition nor the jurisdiction of the Strasbourg Court for a period of some 2 decades.

[7] During the first 50 years of its existence, the ECHR had a somewhat opaque existence in the UK legal system.

There was much uncertainty and, at times, a certain degree of confusion, even schizophrenia. Since the ECHR belonged exclusively to the realm of international law, it could not be invoked before the national courts as a source of rights, obligations or remedies. In one landmark decision, the House of Lords declared, famously, that “back door incorporation” of the ECHR was impermissible : or the Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 (which concerned an unsuccessful challenge to a broadcasting ban). When the UK eventually took the step of giving effect to the ECHR in domestic law, it did so via the Human Rights Act 1998 (“the 1998 Act”). The central pillar of this statute is section 6, which makes it unlawful for a public authority to act incompatibly with any of the protected Convention rights (bearing in mind that the statute does not incorporate all of the ECHR rights and freedoms). It does so in the following terms :

“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”

[My emphasis]

As a keen student of this subject, one of the first things which struck me at the time was the definition of the word “act”. Per section 6(6) ;

“ An act includes a failure to act ….”

Thus, under the Human Rights Act, infringements of Convention rights can be caused by both acts and failures to act. In a common law country, there is nothing revolutionary about this of course : both acts and omissions have been the staple diet of courts and practitioners in the law of torts for many decades.

[8] In the United Kingdom, the task of interpreting any Act of Parliament is a judicial one. Where the parties to litigation are in dispute about the meaning of a particular statutory word or expression, it is the function of the Court to construe it. In certain limited circumstances, the Court is permitted to consider Parliamentary materials – debates, reports et alia – which were generated at the time when the legislation was in gestation, making its journey through the 2 Houses of Parliament. A perusal of Hansard and other sources reveals that there was indeed much debate about various aspects of section 6 : in particular, the meaning of the words “public authority” stimulated extensive discussion and reflection. Intriguingly, virtually nothing was said by Ministers and Parliamentarians about the definition of the word “act”. The same applies to one of the leading text books on the subject [Lester and Tannick, Human Rights Law and Practice, 3rd Edition, Chapter 2].

[9] In the Republic of Ireland, which hosts today’s event, the relevant legislation is silent on this issue. Section 3 of the European Convention on Human Rights Act 2003 provides, in material part :

“(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention Provisions ”.

[Emphasis added.]

Notably, the remedy prescribed by this legislation is an award of damages to the victim, who must demonstrate injury, loss or damage as a result of a contravention of section 3(1) and only if no other remedy in damages is available.

[10] Some of the most important judicial decisions on human rights protection have concerned state omissions. A

selection of these highlights both the versatility of some of the ECHR rights and the importance of vigorous and progressive judicial interpretation and application of this instrument.

[11] One of the outstanding decisions in this field is Osman – v – United Kingdom [1998] 29 EHRR 245, where that one Paget-Lewis, who had formerly taught one of the Applicants, shot at certain members of a family, resulting in the death of the father and injuries to his son. The first Applicant was the widow of the deceased father. The second Applicant was the son. They asserted breaches of Articles 2, 6, 8 and 13 of the ECHR. The essence of their case was that the relevant State agencies had failed to appreciate and act upon a series of warning signs that Paget-Lewis represented a serious threat to the physical safety of members of this family.

[12] I shall attempt to summarise the moderately lengthy facts which, while extraordinary, bear faithful witness to the saying that truth is stranger than fiction. The shootings occurred in March 1987 and the background events dated from the previous year, when the teacher developed an emotional attachment to one of the children of the family. The teacher began following one of the sons home and harassing him. A formal complaint was made to the school principal. The school management considered him to be highly irrational and lacking in judgement and professionalism. The school management made a report to the police and had meetings with a police officer on 4 occasions in March 1987. The officer failed to record these and made no report. Next, there was a highly relevant graffiti incident at the school. The next development was that the school files relating to the son in question were stolen from the office. Following this, Paget-Lewis changed his name by deed poll (to Paul Osman). The school principal then had a further meeting with the police officers and he alerted the relevant education authority. An authority psychiatrist recommended counselling and psychotherapy for the teacher. Next, a brick was thrown through a window of the family home and the tyres of their vehicle were deliberately burst. Both incidents were reported to the police, but unrecorded. Following this, the teacher left the school and did not return again. The education authority suspended him for unprofessional behaviour towards the son. During the ensuing months, there were various acts of criminal damage to the family’s home and vehicle, all reported to the police. On one occasion, the police interviewed Paget-Lewis. Next, the latter’s vehicle was in collision with the vehicle of a family friend who had been involved in the earlier events. Paget-Lewis received a formal police caution. A police record was made to the effect that the families concerned would receive police protection. A police officer assured them that the necessary action would be taken against Paget-Lewis. However, the formal assessment was that there was insufficient evidence to prosecute him for any of the acts of criminal damage. Next, Paget-Lewis was interviewed by officers of the education authority when he threatened to do something irrational. At the critical time, police were aware that Paget-Lewis had made vague threats against the family and that the school authority was very concerned. He was officially “wanted” in relation to the vehicle collision and suspected offences of criminal damage. Some six weeks before the shootings, he stole a shotgun from a parked vehicle and sawed off both barrels. Police did not connect this theft to him. On three separate occasions during the week before the shootings, the family reported to police that Paget-Lewis had been close to the home, wearing a black crash helmet. On the date in question, 7th March 1988, he shot and killed the father of the Osman family and seriously wounded the son to whom his infatuation had been directed. He then drove to the home of one of the other families involved, killing the son and wounding the father. He was arrested by police the following day. Later, he was convicted of two charges of manslaughter, pleading guilty on the ground of diminished responsibility and was sentenced to be detained in a secure mental hospital.

[13] The judgment of the Strasbourg Court proceeded on the basis that a failure by the relevant State agencies to protect a person’s life – to be contrasted with the positive taking of life – could constitute a breach of Article 2. It derived this principle from the opening words of Article 2(1) :

“Everyone’s right to life shall be protected by law.”

This duty is not discharged simply by devising laws for the arrest, prosecution and conviction of those who unlawfully kill. Rather :

“[115] …. Article 2 of the Convention may also imply in certain well defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.”

The Court then addressed the scope of this positive obligation :

“[116] For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.”

Having observed that the police must be permitted to exercise their crime prevention powers in accordance with the rule of law and the constraints of due process, the Court devised the following test :

“[116] In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. ”

[My emphasis.]

Thus the test has two basic components. The first is actual or constructive knowledge on the part of the relevant State agency or agencies. The second is that of reasonable decision making and conduct.

[14] Applying this test to the facts of the case, the Court’s main conclusion was that there was no decisive stage in the sequence of events when it could be said that the police knew or ought to have known that the lives of the Osman family were at real and immediate risk from Paget-Lewis. In thus concluding, the Court reiterated that :

“… The police must discharge their duties in a manner which is compatible with the rights and freedoms of individuals.”

See paragraph [121]. By way of analysis, it may be said that the test formulated by the Court and its application to the particular facts of this case recognise the existence of discretion – or a reasonable margin of appreciation – on the part of the police and, simultaneously, entails some deference to the evaluative judgments and decisions of police agencies. The “Osman” test has become one of the entrenched features of ECHR jurisprudence and has featured repeatedly in subsequent decisions, in both domestic Courts and the Strasbourg Court. See, for example, the series of Strasbourg decisions involving claims brought against Turkey (Kilic – v – Turkey [2001] 33 EHRR 1357 and Others) and Nastromatteo – v – Italy [Application No 37703/97, 24th October 2002], where it was held that there was no breach of the duty to protect the life of the Applicant’s son in circumstances where, during the course of an armed robbery, he was murdered by three criminals, one of whom had been released from prison on leave and another who was subject to a semi-custodial regime. Contrast Kontrova – v – Slovakia, a case involving the murder of two children of the family by their father preceded by reports to the police of instances of psychological and physical violence.

[15] In the United Kingdom, one of the best known decisions in this sphere is Van Colle – v – Chief Constable of Hertfordshire Police [2008] 3 All ER 977, where a witness for the prosecution was shot dead by the person charged with the offence, having previously alerted the police to threats and intimidation. The focus of attention was a particular police officer. In finding no breach of the positive obligation under Article 2 ECHR, the House of Lords said the following :

“[39] …. The question is whether, making a reasonable and informed judgment on the facts and circumstances which were or should have been known to him at the time, he should have apprehended such violence. The fact that [the deceased] was a witness in a forthcoming Crown Court trial was of course a relevant fact, but not one of great weight having regard to the minor character of the charges and the unlikelihood of a severe penalty ….

If a comparison be made with Osman’s case, the warning signs in this case were very much less clear and obvious …..”

[Per Lord Bingham.]

“[68] The murder was the action of a seriously disturbed and unpredictable individual. In my opinion, it cannot reasonably be said that [the police officer] should have anticipated, from the information available to him at the time, that [the murderer] constituted a risk to [the deceased witnesses] life that was both real and imminent.”

[Per Lord Hope.]

Notably, a third member of the Appellate Committee, Lord Brown, opined that the Osman test is “clearly a stringent one which will not easily be satisfied” : paragraph [115]. The Osman test was the subject of further detailed examination by the House of Lords in Re Officer L [2007] UKHL 36, which concerned the question of protective measures to be taken for the benefit of police witnesses at a public inquiry. The main opinion was delivered by Lord Carswell, who stated :

“[20] …. It is in my opinion clear that the criterion is and should be one that is not readily satisfied : in other words, the threshold is high …

[It is entails] a real risk (viz) one that is obviously verified and an immediate risk (viz) one that is present and continuing …”

Lord Carswell also acknowledged the influence of the balance principle in the Osman test :

“[21] Secondly, there is a reflection of the principle of proportionality, striking a fair balance between the general rights of the community and the personal rights of the individual, to be found in the degree of stringency imposed upon the State authorities in the level of precautions which they have to take to avoid being in breach of Article 2 …

The standard accordingly is based on reasonableness, which brings in consideration of the circumstances of the case, the ease or difficulty of taking precautions and the resources available.”

[16] I have given some prominence to Article 2 ECHR in this presentation for two main reasons. The first is that the right to life is universally regarded as the supreme right, of insurpassable value and importance. The second is that this dimension of Article 2 has featured quite extensively in Northern Ireland cases. Doctrinally, the origins of positive obligations on State agencies in the realm of European Human Rights law protection is easily traced. It stems from Article 1 ECHR, which sits at the pinnacle of this treaty :

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.”

This provision has frequently been invoked by both domestic Courts and the Strasbourg Court as an important guide to the meaning and scope of individual Convention rights and also, more recently and progressively, to the increasingly important question of the territorial scope of both ECHR and HRA 1998.

[17] With this in mind, I shall turn briefly to some few other illustrations where the State’s failure to act has been found to contravene the Convention. In Botta – v – Italy [1998] 26 EHRR 241, the Applicant, a physically disabled person, complained that the absence of facilities enabling access to the beach and sea, where he holidayed, in breach of Italian legislation, infringed his rights under Article 8 ECHR. The Strasbourg Court rejected his claim :

“[33] In the present case, the Applicant claimed in substance not of action but of a lack of action by the State. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference : in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life ….

However, the concept of respect is not precisely defined. In order to determine whether such obligations exist, regard must be had to the fair balance that has to be struck between the general interest and the interests of the individual, while the State has, in any event, a margin of appreciation ….

[35] In the instant case …. the right asserted …. Concerns interpersonal relations of such broad and indeterminate scope that there can be no conceivable direct link between the measures the State was urged to take in order to make good the omissions of the private bathing establishments and the Applicant’s private life.”

In short, the Court held that Article 8 was not applicable. The passage quoted above from paragraph [34] of the Court’s judgment was to become one of the entrenched features of its subsequent jurisprudence.

[18] At this juncture, I shall move closer to the central theme of today’s event (bearing in mind that the Environmental Law Working Group of AEAJ is directly interested and involved). Factually, the decision in Lopez Ostra – v – Spain [1994] 20 EHRR 277 contrasts sharply with that in Botta, although both concerned Article 8 ECHR. In Lopez Ostra, a waste water treatment plant was developed close to the Applicant’s home and began to operate without a licence, releasing fumes and smells causing health problems to local residents. The Strasbourg Court held that there had been a breach of Article 8 ECHR. It considered that there was a positive duty on the part of the State to take reasonable and appropriate measures to secure the Applicant’s rights under Article 8(1). The alternative analysis was that there had been positive conduct by the State giving rise to an interference with the Applicant’s Article 8 rights : see paragraph [51]. While the plant had not been constructed by a State agency, the Municipal Town Council had allowed it to be developed on its land and the State had subsidised its construction. Furthermore, the failure to act on the part of the municipality was complemented by its positive act of appealing against the decision of the regional High Court [the Audiencia Nacional] which had ordered temporary closure of the plant. The Court’s general observation, in paragraph [51] is noteworthy :

“Naturally, severe environmental pollution may affect individuals’ well being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health.”

The Court concluded that the State had failed to strike a fair balance between the interests of the town’s economic well being – that of having a necessary waste water treatment plant to solve a serious pollution problem – and the Applicant’s effective enjoyment of her right to respect for her home and her private and family life, giving rise to a violation of Article 8 : see paragraph [58]. While the Applicant claimed large amounts of monetary compensation for distress, anxiety, inconvenience and the cost of acquiring a new home, she recovered but a fraction of this. The just satisfaction ordered by the Court was 4 million pesetas (which converts to approximately €25,000, at today’s values), for both pecuniary and non pecuniary damage.

[19] This was unquestionably a landmark decision of the Strasbourg Court. It tilted the balance of competing interests between the individual and the State in favour of the citizen. Protection of the citizen against environmental harm consisting of pollution has been developed in the jurisprudence of the Court. In contrast, given that there is no right to a safe and ecologically balanced environment, complaints and issues concerning resource management and nature conservation or biological diversity do not readily fall within the scope of Article 8 ECHR. This brings to mind a decision of the European Commission in a case decided in 1974 wherein an Icelandic resident challenged a public authority’s refusal to permit him to have a dog as a pet. The Commission opined :

“The Commission cannot however accept that the protection afforded by Article 8 of the Convention extends to relationships of the individual with his entire immediate surroundings, insofar as they do not involve human relationships and notwithstanding the desire of the individual to keep such relationships within the private sphere. No doubt the dog has had close ties with man since time immemorial. However, given the above considerations, this alone is not sufficient to bring the keeping of a dog into the sphere of the private life of the owner .”

[Application Number 68/25/75, 5 DR 86.]

[20] The theme of adverse impact on the individual caused by environmental pollution resurfaced in the decision of the Strasbourg Court in Guerra – v – Italy [1998] 26 EHRR 357, which concerned toxic emissions from a factory. The Court held, firstly, that Article 8 was applicable : see paragraph [57]. Secondly, it decided that Italy had infringed the Applicant’s rights under Article 8 by failing to communicate to them essential information which would have enabled them to assess the risks to which they and their families were exposed in the event of continuing to live in the town in question : see paragraph [60]. The proceedings were brought by 40 families living at this location. They claimed compensation of 20 million lira for so-called “biological” damage. The Court awarded compensation of 10 million lira to each of the Applicants for non-pecuniary damage. Notably, while the Commission had concluded that Article 10 ECHR imposes on States the positive duty to collect, collate and disseminate information which would otherwise not be directly accessible to the public, the Court reversed this approach, focusing its decision on Article 8. Furthermore, from the perspective of remedies, the Court specifically declined the Applicant’s request that it order the relevant Italian authority to undertake a cleanup operation, on the ground that it had no power to do so.

[21] Under the aegis of Article 8 ECHR, the Strasbourg Court has, in its jurisprudence, developed environmental rights in a manner which, I suggest, could scarcely been foreseen 60 years ago. This underlines the intrinsic elasticity of the rights protected by Article 8. A kindred decision is found in Moldovan – v – Romania Number 2 [2007] 44 EHRR 16, where the seven Applicants, all of Roma origin, had their homes destroyed by fire by the actions of third parties, including State police officers. Multiple complaints under the ECHR materialised. One of these concerned the failure of the State to reconstruct 3 of the destroyed houses, coupled with the uninhabitable nature of some of the houses which were rebuilt. The Strasbourg Court found, inter alia, a breach of Article 8 ECHR :

“[The Court] furthermore considers that the Applicants’ living conditions in the last 10 years, in particular the severely overcrowded and unsanitary environment and its detrimental effect on the Applicants’ health and wellbeing, combined with the length of the period during which the Applicants’ have had to live in such conditions and the general attitude of the authorities, must have caused them considerable mental suffering, thus diminishing their human dignity and arousing in them such feelings as to cause humiliation and debasement.”

See paragraph [110]. The just satisfaction ordered ranged from awards of €11,000 to €95,000, in respect of both pecuniary and non-pecuniary losses.

[22] To summarise, the jurisprudence of the Strasbourg Court has established that breaches of the right to respect for one’s home are not confined to concrete or physical incursions or invasions, such as the unauthorised entry into a house, but also include infringements of a non-physical nature : such as noise, noxious emissions and smells and kindred harms. This kind of invasion prevents the individual from enjoying the amenities of his home and immediate surrounds. Similarly, the planning processes must ensure adequate respect for the individual’s right to respect for their home : see Arrondelle – v – UK [Number 7889/77, 26 DR 5]. It matters not that the immediate impetus for the interference concerned is the conduct of other citizens or private law entities. This is illustrated in Moreno Gomez – v – Spain [2000] 41 EHRR 899, where the Applicant, the resident of a flat in a residential quarter of the city of Valencia, complained of high levels of nocturnal noise emitted by night clubs and bars which had been licensed by the local council. It was held unanimously that there had been a violation of Article 8 ECHR. This was approached by the Strasbourg Court as a case of pure inaction by the relevant public authorities : see paragraph [57]. The failure to take action to address repeated flouting of the applicable rules constituted a breach of the Applicant’s Article 8 rights. The Courts reiterated that “….. the Convention is intended to protect effective rights, not illusory ones” : paragraph [61]. The just satisfaction awarded was €3,884 in respect of pecuniary and non-pecuniary damage.

[23] In contrast, there have been cases concerning actions of the State motivated by concerns to protect the environment where the Court has struck the balance in favour of public authorities. Examples include Mateos – v – Portugal [1996 – IV, 16th September 1996] where the measure under challenge was a decision to create a nature reserve on lands which included parcels owned by the Applicants. The Court accepted that, in principle, measures devised under the aegis of town and country planning for the purpose of protecting the environment constituted a legitimate public purpose justifying restriction on property rights. However, it found that in the particular case the restriction was not necessary, since the Government had at no time implemented the proposed nature reserve plan. In another case, Pine Valley Developments – v – Ireland [ECHR. Ser. A Number 222, 1991], the Court upheld the State’s decision whereby permission to build an industrial warehouse and office development in a zoned green belt was refused, on the ground that it pursued a legitimate aim – protection of the environment – and was proportionate. Notably, the Applicant succeeded on a different basis, the Court finding a violation of Article 14 ECHR taking in conjunction with the right to peaceful enjoyment of one’s possessions protected by Article 1, First Protocol.

[24] Interestingly, other provisions of the ECHR have featured in cases involving the environment. In Bladet Trom – v – Norway [20th May 1999] the Grand Chamber of the Strasbourg Court held (by a majority) that the State could not permissibly extend its defamation laws to restrict dissemination of environmental information of public interest. A violation of Article 10 ECHR was found. In Zander – v – Sweden [ECHR 1993, Ser A, Number 279B], the European Court found a violation of Article 6 ECHR on the ground that national laws precluded judicial review of a decision whereby a private undertaker was granted a renewed permit for a waste treatment and storage area, in circumstances where contamination by cyanide of the local well water emanating from this plant was demonstrated. Article 6 was also the Convention Right in play in Balmer Schafroth – v – Switzerland [1997 – IV ECHR, 26th August 1997] where the European Court, by a narrow majority, rejected a complaint that the persons concerned were entitled to a hearing in respect of the Government’s decision to renew an operating permit for a nuclear power plant.

Some concluding remarks

[25] The nexus between environmental harm and human rights has featured in the decisions of a large number of global and regional human rights organisations. The list is an impressive one, including the UN Human Rights Committee, the Committee on the Rights of the Child, the Committee on the Elimination of Discrimination Against Women, the UN Committee on Economic, Social and Cultural Rights, the Organisation of American States and the African Commission on Human and Peoples’ Rights. In a series of sharply contrasting cases, these bodies have on occasions found violations of human rights linked to environmental degradation. Beyond the frontiers of Europe, the right to life and the rights of indigenous groups have featured in this sphere. Similarly the right to health (protected by Article 16 of the African Charter) and the right to life, liberty and personal security (under Article 1 of the Inter-American Convention on Human Rights). The differential impact of environmental harm on groups such as women or children can also give rise to issues of discrimination, as reports of the relevant UN Committees demonstrate. The environmental harm which has featured in these fora includes air pollution, deforestation and water pollution. Conspicuous by its absence, however, is an unequivocal right to a safe and healthy environment.

[26] I return to the theme of remedies for human rights violations. In R – v – Secretary of State for the Home Department, ex parte Greenfield [2005] UKHL 14, the context was shaped by a prison adjudication which had infringed a prisoner’s rights under Article 6 ECHR. This relatively unglamorous and unpromising framework resulted in a landmark decision of the House of Lords on the question of whether the prisoner was entitled to damages. Their Lordships held that no such entitlement existed. The opinion of Lord Bingham expressed the following principles :

(a) The central focus of the ECHR is that of securing observance by Member States of minimum standards in the protection of the human rights and freedoms which it guarantees.

The scheme of the ECHR is to require a defaulting Member State to take prompt steps to prevent a repetition, thereby serving the primary object of the Convention.

HRA 1998 is not a tort statute, but has objects which are different and broader.

Where a finding of a violation of a Convention Right is made, this will form an important part of the claimant’s remedy and an important vindication of the right he has asserted.

Damages need not ordinarily be awarded to encourage high standards of compliance by Member States, given their obligations in international law.

HRA 1998 is not designed to provide victims with better remedies than those available under international law in Strasbourg.

The national courts must have regard to the Strasbourg jurisprudence.

Where the national court considers an award of damages appropriate, the sum should not be significantly more or less generous than one would expect from the Strasbourg Court.

[In passing, the application of these principles is illustrated in the Northern Irish case of Barr v HM Customs & Excise [2008] NIQB 131].

[27] Lord Bingham’s formulation of the governing principles is characteristically precise, concise and authoritative. I readily adopt it to conclude this presentation, with two further and final observations. The first is that under the ECHR machinery remedies for breaches might be considered relatively weak : contrast the focus of the common law on practical and effective remedies and the panoply of forms of redress available to UK courts under section 8 of HRA 1998. The second is that an award of monetary compensation has arguably come to occupy a disproportionately elevated place in UK domestic law. Perhaps ironically, the impact and influence of HRA 1998, in an era of ever increasing economic austerity, may stealthily reverse this trend and philosophy.